The allocation of a site in kind is possible if its permissible area allows it. The location of the land and the specific order of its use matter. A share in a land plot is considered abstract, i.e. in nature it may not be determined. Situations are possible when the owner of a smaller share uses a larger part of the plot or even uses all the land himself.
Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to find out how to solve your particular problem , contact a consultant:
8 (800) 700 95 53
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and FREE !
Co-owners can agree on the joint use of land, including by formalizing an agreement. But this may not always be beneficial.
Thus, there may be violations of the order of use, or one of the shared owners will want to sell his share. In such a situation, one of the owners turns to the other with a proposal to allocate a share. If he refuses the deal, he has the right to go to court and demand the compulsory allocation of the plot.
What it is?
The allocation is carried out at the request of one of the participants in shared ownership. The creditor of the shared owner of the land has the right to demand the allocation of a share in order to forcibly foreclose on it.
The participant in shared ownership sends to the co-owners of the plot a proposal to allocate a share. The written notification may contain the conditions of allocation - boundaries, area of the newly formed land plot.
The owner can also invite shareholders to directly determine the boundaries of his plot - with special signs. The allocation proposal specifies the desired time frame for obtaining consent and commencing work.
If other owners for any reason do not want the allocation, they have the right to submit their reasoned objections. If the owner evades the answer, the interested owner has the right to file a claim in court and demand the allocation of a proportionate plot.
A land management examination can be carried out, which will confirm or deny the possibility of allocating a plot in kind, without violating the rights of other owners and causing disproportionate damage to the original land plot.
The allocation of a land plot is the provision of a part of the land, a proportionate share of the owner who wants to isolate his part of the land.
It is carried out after the necessary land management work has been completed, the beginning of which must be an agreement between the owners or a court decision.
The newly formed land plot is subject to registration in the Unified State Register of Real Estate. Its cadastral registration is possible only after the boundaries have been determined, an address has been obtained, and land surveying has been carried out.
When forming a site, the opinions of other owners are taken into account. If there are objections and refusal to sign the agreement, the court will help allocate the shares.
If the allocation is of a commercial nature, then the owner should apply to the arbitration court at the location of the defendant.
Allocation of land
Allocation is possible by voluntary agreement between the owners. It is advisable to carry it out if the land plot is large - for example, intended for use for agricultural purposes, and the owners are actively developing it.
Allocation is permitted in the event that one of the owners wishes to sell their share.
The cost of a separate plot with its own cadastral number, as a separate piece of real estate, will be higher than the cost of the share.
The main condition is the possibility of allocating a site in kind depending on its parameters and location.
Actually
The allocation of a share involves the provision of its land equivalent in kind. The owner of the share must receive a full-fledged land plot. The process is easy to implement if the site is large and located in a convenient location.
A dispute may arise regarding how much of the site the owner needs to provide. Part of the land may be located near a pond, lake, or reservoir. This share may be higher in price.
If, after the allocation, it is planned to use water bodies that are located near the site and this can be done easily by providing a passage through the original site, then the owner of the allocated land may demand through the court to establish an easement - the right to limited use of the original land plot from which a share, for example, of a passage was separated or travel.
Read how to find out your turn on a plot of land. What is acquisitive prescription for a land plot? See here.
Shares
If the land plot is in common joint ownership, for example, by spouses or owners of a peasant farm, then they can sign a share agreement and divide the land into equal shares or establish another share ratio.
The shares will then not be allocated in kind, but at the same time the owners have the right to agree on the separation of the boundaries of specific shares and the formation of a land plot.
Differences from section
The allocation of a land plot from an existing plot is carried out without the termination of the existence of the original property. The old plot will also be considered an object of shared or individual ownership. He will be assigned the same cadastral number and will have the same address.
The changes will affect its area and boundaries, as well as the composition of copyright holders (owners).
When a plot is divided, the original plot ceases to exist and is transformed into several objects with their own new boundaries and cadastral numbers.
Why allocate a site?
Each owner decides for himself why he needs to leave common use. Most often, this is the impossibility of peacefully agreeing on the joint use and disposal of property or simply for sale. After all, common use imposes many restrictions that not everyone can accept.
The concepts of allotment and division of a plot are often confused. If there are two owners, the allocation of land is reduced to division. That is, from the original site, two new ones are formed with areas according to shared participation. Now, if there are 3 or more owners, then you can only allocate your share . And then in many cases it is more profitable and convenient to immediately divide the plot among all owners, indicating the boundaries on the ground. But here, too, we cannot do without general agreement.
Procedure
To allocate a plot of land, it is necessary to sign an agreement between the co-owners or go to court to force the procedure. The agreement must be certified by a notary. It can indicate the boundaries of the site and its area.
After carrying out land management work, changes or additions can be made to the agreement. Land management and cadastral work can be carried out before signing the agreement.
If the court decision is made in favor of a citizen or organization wishing to allocate their share, then all work must be carried out in the manner and within the time frame specified in the court decision.
What matters is the final court decision, i.e. the one that was adopted in the final instance where the case was considered.
If land management work has been completed, then you can contact Rosreestr with an application to register the newly formed plot for cadastral registration and register ownership.
List of documents
To allocate a share from a land plot to Rosreestr, you must provide:
- a copy of the applicant's passport;
- agreement between share owners or court decision;
- land management documentation – boundary plan, including those recorded on electronic media;
- title document for the original share;
- receipt of payment of state duty (2 thousand rubles).
If the applicant is acting under a power of attorney, then a notarized power of attorney confirming the citizen’s authority must be provided.
A sample boundary plan for a plot of land is here.
Statement
In 2020, the application is still completed on the form provided by Rosreestr. It is filled out by a specialist working with cadastral documentation.
The form contains information about the applicant, information about the share, location, and boundaries of the land plot. The applicant’s personal information is indicated - his passport details, contact information is indicated.
A sample application for the allocation of land is here.
Price
Land management work is subject to payment, the cost of which averages 5-20 thousand rubles. The state duty is 2 thousand rubles.
The average cost of work excluding legal costs is 25 thousand rubles.
The procedure for registering a residential building on a land plot is determined by current legislation. Is it possible to sublease part of the land plot? Information here.
How to find out who is the owner of a land plot? Details in this article.
Legal assistance in cases of allocation of a share in a land plot in kind
The owner of land, which belongs to several persons at the same time, has several opportunities to exercise his rights. And even if it is not possible to use the land in kind, he can count on receiving monetary compensation. The easiest way to achieve this is with the participation of a professional lawyer.
Our company provides free legal assistance and invites participants in land disputes to consultations, which are carried out free of charge. The offer applies to the client’s first contact with our specialists.
After reviewing the documents you have and assessing the possibilities for a voluntary settlement of the dispute, lawyers will tell you what is needed to resolve your problem as quickly as possible and how long it will take. Having received this information, you can independently deal with your land dispute or entrust its comprehensive management to the specialists of our company.
By enlisting the support of a professional lawyer, you will save yourself from the need to independently collect documents and draw up statements, negotiate with other land owners and participate in court hearings.
If it is necessary to conduct a land survey, a specialist from our company will select the best expert institution and formulate questions for research, and in court will support your legal position and refute the arguments of other participants in the process.
Arbitrage practice
When considering claims for the forced allocation of a share from a land plot, the courts take into account the results of the land management examination and establish the real possibility of allocating the plot in kind, without causing disproportionate damage to the original plot.
If the possibility of separation is established and the plaintiff can confirm his ownership of the share, then, with a high probability, claims of this kind in Russian courts will be satisfied. In such litigation, it is advisable to seek the support of a qualified lawyer.
Here is presented the judicial practice on declaring the allocation of land plots illegal.
What are the necessary conditions for allocating a plot?
- First of all, the share of the plot that belongs to you must be determined. Both in numerical terms and approximately on the ground.
- The formed area must meet a number of points (minimum size, etc.). You can read more here.
- And since an allotment is a kind of division of a site, you need to know the conditions of the division (ensuring passage, etc.). All of them are also taken into account when selecting.
- It is necessary to obtain the consent of all shareholders (except for agricultural land - special rules apply there). If consent cannot be obtained, the decision on the allocation of land will be made by the court.
- In some cases, if the allocation of a share may lead to damage to the common property or is simply prohibited by law, it is possible to demand monetary compensation from the shareholders, after receiving which the right to a share of the land plot is lost.
